Vulnerable employees

In this series, we delve into the XpertHR reference manual to find essential information relating to one of our features.

There will always be some workers who are more vulnerable to the risk of injury or to particular work activities, practices or processes than others. For example, new and expectant mothers and young persons are more at risk from exposure to biological and chemical agents than other young, fit employees.

Employees who have a pre-existing injury (mental or physical), or who have a disability may be at a greater risk than employees who do not. Employers have general duties to take greater care of these employees but there are also various legislative provisions that may impose particular duties on employers to ensure that such employees do not come to harm.

An employee might be more susceptible to risks because he or she has a pre-existing injury or other condition. In such circumstances the employer generally owes that person a greater duty of care.

Disabled employees

While the Disability Discrimination Act 1995 is not a measure directed towards ensuring the health and safety of disabled individuals, it is closely connected to it. Under the Act, a disabled person is someone who has a physical or mental impairment that has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities (section 1). Various regulations require employers, when carrying out risk assessments, to take into consideration the capabilities of the individuals, including disabled employees.

Under the Disability Discrimination Act 1995 an employer of a disabled person is under a duty to make ‘reasonable adjustments’ to reduce any substantial disadvantage to which the disabled person is otherwise subject in the workplace.

Such ‘reasonable adjustments’ might include: lessening the workload; transferring to other duties; adjusting hours of work; and transferring some duties to others.

This is not an exhaustive list. There may be other reasonable adjustments that could be made. When employing a disabled person, the employer must take account of the physical features of the workplace and the capabilities of the disabled employee.

The Disability Discrimination Act 1995 is supplemented by a Code of Practice and guidance notes, which are extremely useful.

What is ‘reasonable’ depends on the particular circumstances. To some extent, cost may be a factor where the cost of making a particular adjustment is disproportionately high compared to the benefit that will flow from it. However, the employer may be able to obtain funding from other sources. If that is the case, then a failure to make a particular adjustment on grounds of cost may render the employer guilty of unlawful discrimination.

In Tarling v Wisdom Toothbrushes Ltd ET/1500148/97, the employee had a club foot and needed a special footrest. It cost £1,000. The employer said that it could not provide it. The employer could have obtained funding from other sources (such as Access to Work, which could have contributed 80 per cent of the cost) and the cost to it would have been low while the benefit to the disabled employee would have been high. The employer was guilty of unlawful disability discrimination.

When taking into account a disabled person’s capabilities at the workplace, the employer should try to ensure that the disabled person has a suitable workstation and can access rest rooms and toilets, and that there are appropriate emergency arrangements in place to provide for the disabled person. The employer is not, however, required to provide a helper to take the disabled person to the toilet (Kenny v Hampshire Constabulary [1999] IRLR 76 EAT).

An employer could justify terminating the employment of a disabled person or refusing to employ him or her, for example on health and safety grounds. In Matty v Tesco Stores [1997] ET/1901114/97, the disabled person suffered from epilepsy. The job of an engineer would have required the disabled person to work in the cold store, on rotating shifts, and use mechanical handling equipment, possibly climbing ladders.

The only way that the employer could have ensured Matty’s health and safety would have been to employ another engineer to work with him at all times. The employment tribunal accepted that this was not a ‘reasonable adjustment’. While the decision not to employ had been on grounds of the applicant’s disability, the employer was able to justify its refusal on health and safety grounds.

Practical example (disability)

Fred Brown has been employed for 10 years in a factory making boxes. He is an excellent worker and his productivity rate is 20 per cent above that of his colleagues. Two years ago he started having blackouts culminating last year in a heart attack. He has been fitted with a pacemaker.

He returned to work after three months’ convalescence. His productivity rate is still 20 per cent above that of his colleagues. He has been told to slow down, not to lift or carry boxes or do anything that might endanger his health. He consistently ignores those instructions. His view is that he knows what is best for him.

Brown keeps feeling unwell at work. Last week he passed out and was slumped in a corner. He was rushed to hospital and has been signed off for four weeks.

The employer has checked with the pacemaker and factory machinery manufacturers to see if the machinery might be affecting the pacemaker’s integrity. The answer has been “no”.

It would appear that the problems rest with Brown, who cannot stop himself doing things he has been told he cannot do. His colleagues are worried that he will collapse and die at work. To discharge its duties the employer must:

review the risk assessment

liaise as appropriate with Brown’s doctor and obtain a medical report

consider whether any reasonable adjustments can be made, such as a transfer to other duties like clerical work

if no adjustments are possible, instigate the ill health termination procedure and/or terminate on grounds of ‘some other substantial reason’ (on health and safety grounds) as it is Brown who is a danger to his own health and safety.

Letters of suspension, request for medical information and termination.

Questions and answers

Are disabled employees subject to any specific health and safety regulations?

The Disability Discrimination Act 1995 defines a disabled person as someone who has a physical or mental impairment that has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. There are a variety of regulations requiring employers, when carrying out risk assessments, to take into consideration the capabilities of individuals (Personal Protective Equipment Regulations 1992, Workplace (Health, Safety and Welfare) Regulations 1992, etc), including disabled employees. The Act has a Code of Practice and Guidance Notes that provide practical and useful advice on the employment of disabled persons.

What duty of care has an employer to an employee with a pre-existing injury or condition?

An employee might be more susceptible to risks because he or she has a pre-existing injury or other condition. Under the Health and Safety at Work Act 1974 and Management of Health and Safety at Work Regulations 1999, the employer generally owes that person a greater duty of care.

It should be noted that such pre-existing injuries or conditions may be physical or mental. This means that someone who has been off work with a nervous breakdown due to stress may be presumed to be just as vulnerable as an employee who has been absent due to a broken leg.